Swiss high court ruling on Haitian ex-dictator Jean-Claude Duvalier’s money will lead to new law

Talloires, France, near Geneva, where the Duvaliers fled after leaving Haiti in 1986 (photo: Talloires Tourisme)

Update (links added) 23:30  Bern, Switzerland (GenevaLunch) – The Swiss government Wednesday morning 3 February took the unusual step of freezing funds in a bank account once held by Haiti’s former dictator, Jean-Claude Duvalier, based on a special cases clause in the Swiss constitution. At the same time the Swiss supreme court published its ruling on the frozen assets, saying that they cannot be returned to the Haitian people as mandated by the Swiss Office of Justice in 2009. The court decision has prompted the Swiss Federal Council to freeze the funds long enough to pass a law that will help it avoid releasing the assets “for the benefit of the Duvalier clan, which the Federal Criminal Court deems to be a criminal organization.”

A new law would allow the Swiss parliament input on how to best return the money to Haiti.

The ruling Federal Council is asking the Foreign Affairs Department to “complete by the end of the month its work on drafting a federal law that would ultimately allow such assets to be confiscated, and to submit the draft law for consultation.” A spokesperson for the Federal Foreign Affairs Office told GenevaLunch that the law is likely to be passed in 2010. It will cover similar situations of confiscated assets, several of which have come up in recent years.

Switzerland is the only country in the past 20 years to have returned stolen “potentates” funds to the countries previously ruled by the dictators: more than CHF1.6 billion has been returned to Peru, the Philippines and Nigeria among others.

The Duvalier family has been fighting to obtain access to $5.7 million sitting in Swiss bank accounts since they were frozen in 1986, when the Haitian government made a first request for assistance to obtain what it said were stolen funds. Jean-Claude Duvalier, popularly known as Baby Doc, ruled Haiti starting in 1971, when at age 19 he became the world’s then-youngest ruler. His father, known as Papa Doc, had ruled it for the previous 13 year.

A popular rebellion in February 1986 overthrew the son and ended the family’s rule. His regime had been propped up by the US government, which provided millions of dollars in aid. Duvalier was widely reported in 1986 to have amassed a personal fortune of $400 million.

Jean-Claude Duvalier and his extended family fled the country with the help of the US and France as lynch-mobs roamed the streets of Port-au-Prince, Haiti’s capital.

He was taken in by the French government and became the unwelcome guest of the Hotel de l’Abbaye in Talloires, near Annecy, for several weeks in early 1986, hiding inside the chateau while world media held a siege outside, hoping to photograph him and his glamorous wife Michèle. A political circus ensued, with Duvalier attempting at one point to sue France for holding him hostage at the hotel.

His wife divorced him in 1993, reportedly taking much of his wealth in the process. France refused to grant him political asylum, and he has been living relatively quietly as a private citizen. An announcement that he intended to run for president of Haiti in 2006 met with a cold reception in the country, and he never became an official candidate.

Haiti’s requests for judicial assistance to have the money returned to the Haitian government lay dormant, despite efforts by Switzerland to goad the politically unstable country into action on the accounts before the statute of limitations ran out.

The Swiss Office of Justice ruled in February 2009 that the money must be returned to the Haitian people, a decision the lawyers for the Duvalier family appealed. The Justice Office’s decision was upheld by the Swiss Federal Criminal Court in August 2009.

This decision was overturned by the Swiss Supreme Court 12 January 2010, but the news was announced only Wednesday.

The court says the money cannot be frozen, based on Swiss criminal law, because the statute of limitations has run out. It left open, however, the possibility that the assets could be frozen, based on an article in the Swiss constitution that allows extraordinary measures to be taken, for a fixed period of time, when the country’s political will in a matter is clear and the normal course of the law and politics run counter to the political will. In the case of Haiti, the Swiss government has made it clear over the past 24 years that it does not believe the Duvaliers should touch the assets, and that they should be returned to the Haitian people.

Clear that the Duvalier family “obtained the funds illegally”: Swiss court decision carries weight

The federal government’s announcement of the news Wednesday notes that “the Federal Supreme Court did not call into question the judgement of the Federal Criminal Court concerning the criminal origin of the assets. In view of this situation, the Federal Council has been looking for a way to avoid allowing the assets to return to the Duvalier family who acquired them by illicit means. In pursuing its policy to avoid allowing the Swiss financial centre to become a haven for illicitly acquired assets, the Federal Council has decided to continue the freeze on the Duvalier assets on the basis of the Federal Constitution. Moreover, it considers it necessary to respond to the issue of assets of politically exposed persons by means of a specific law.”

Links to other sites: Le Temps 3 Feb, Time Magazine, Tyranny for Haitians, 1962, Dictators’ Assets, Swiss Foreign Affairs Department, Le Temps (Fre)

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